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Workshop on Management of Intellectual Property by Photographers Beijing, China, December 8 and 9, 2005.

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Presentation on theme: "Workshop on Management of Intellectual Property by Photographers Beijing, China, December 8 and 9, 2005."— Presentation transcript:

1 Workshop on Management of Intellectual Property by Photographers Beijing, China, December 8 and 9, 2005

2 Taking Photos of Copyright Material, Trademarks and People Lien Verbauwhede Consultant, Consultant, SMEs Division World Intellectual Property Organization (WIPO)

3 This Presentation Outline Taking photos of copyright material Taking photos of trademarks Taking photos of people


5 Freedom of expression Copyright Trademark rights Privacy Fair competition National security Ethics Private property Children protection

6 Restrictions on taking/using photos Laws, administrative rules, doctrines, common law, etc Vary from country to country Change over time Legal requirements Liabilities Missed opportunities Ethics How the world sees you as an ethical being Opinions vary widely Personal choices


8 Owner of copyright work : exclusive right to reproduce work Photographing = reproducing When do you need permission?

9 1.Object copyright protected? 2.Copyright expired? 3.Substantial part? 4.Exclusive right copyright owner? 5.Exception?

10 1. Does your photo encompass copyright material? Literary works P. Neruda Poems, books newspapers Magazines, catologs

11 Artistic works Chris Coe cartoons Horta Architectural works Laser & computer work Long Tz Chan Paintings, photography Manneken pis statues Giacometti sculptures

12 Maps, globes, technical drawings

13 Advertisements, commercial prints, billboards, labels

14 Films, TV ads, dance, plays, mime...

15 Works of applied art Swarovski Alessi

16 2. Has the copyright expired? Life author + 50 y 70 y Public domain Joint works Special rules

17 Boyd & Evans Joint work Sisters, 2004 Man and the Menagerie, 2004

18 Permission required if you use subtantial part Substantial part = important, essential, distinct part of the work How much + quality of what is used Depends on the circumstances ! 3. Do you use a substantial part?

19 René Magritte Belgian surrealist painter 1898-1967 The Son of Man Fictitious example


21 Taking photo = reproducing Making print, photocopying, scanning Making collage from several works Adding artistic elements to a work Displaying to public (exhibiting photo, selling postcards, posting on website, etc) 4. Do you do an act which the copyright owner has the exclusive right?

22 Vary from country to country Depends of facts and circumstances Take into account: –Amount of work used –Nature of work used –Nature of your use –Effect of your use on the potential market for the work 5. Does an exception apply? In some countries: Specific reference in law In some countries: Fair use

23 Exception 1 Church of Bossey, France

24 Taking photos of buildings In most countries: Buildings may be freely reproduced in pictorial form and then made available to the public Houses, office buildings, churches, garden pavilions Not: monuments But: Separable artistic elements associated with buildings may be protected

25 801 Tower, The Architects Collaborative, Los Angeles Batman Defeats Claims of Building Copyright Infringement …

26 Exception 2 Plaza Botero, Medellìn

27 Taking photos of copyright works in public places In most countries: no permission needed to photograph artistic works located in public places BUT: –Exception only to certain types of works –Only if displayed in public –Only if permanently displayed in public

28 Exception 3 2005 Archibald Prize The 2005 Archibald Prize has been won by John Olsen for his painting Self portrait Janus Faced. The Archibald Prize is now in its 84th year and Olsen received a prize of $35,000 for his win. John Olsens artist statement about his Archibald self portrait comes in the form of a poem, which he wrote this year: … The Archibald Prize - Australia's premier portraiture award John Olson, Self portrait Janus Faced

29 Taking photos to accompany news reports, reviews, critiques Use in news report on TV, media articles, etc. Use for book which reviews the works Obligation to identify name of author + title of work

30 Exception 4 Taking photos for private use Jeff Koon, Puppy, Bilbao

31 Taking photos for private use In most countries: private use of images is legal and doesnt require permission, regardless of what copyright it is Use it to decorate your house, show to friends, put in photo album, etc

32 From whom do you need permission? Copyright owner creator commissioner employer Owner of the work If transfer of copyright Govern- ment

33 Do you need to identify the author? Moral rights –Paternity right Even if use allowed under exception You or your client: when exposing to the public

34 Can you make changes? Moral rights –Right of integrity Changes that would damage the honor or reputation of the author –Digital manipulation of others works within your photo Use in context that would damage the honor or reputation of the author –Che Guevarra

35 Fictitious example Advertising agent gets license from photographer to use photo for Nike ad. Digitally manipulates photo (mouth)

36 Alberto Korda "As a supporter of the ideals for which Che Guevara died, I am not averse to its reproduction by those who wish to propagate his memory and the cause of social justice throughout the world," Korda said in the autumn of 2000. "But I am categorically against the exploitation of Che's image for the promotion of products such as alcohol, or for any purpose that denigrates the reputation of Che." Ad Smirnoff vodka Lawsuit, London, 2000

37 Can you copy ideas? River Kwai


39 Can you freely include trademarks in your photos? Unlike copyright, trademark law does not restrict the reproducing of a trademark in the photograph itself BUT: Trademark law forbids using a trademark in a way that can confuse consumers regarding the affiliation of the trademark owner to the image

40 Fictitious example


42 Are people protected by intellectual property rights? No... But...

43 Choreographic work Artistic fabrics jewelry Badge or logo

44 When is permission particularly recommended? 1.Intruding ones privacy Intentionally viewing people insider their house, business or other other private areas Hidden cameras Example: photo of patients in hospital

45 Especially if –Matter is highly offensive –Matter is not of public concern Example: –Sexual affairs, private debts, criminal records, deseases, psychological problems –Picture man driving car, with pint in hand 2. Publicizing private facts

46 BUT: Right of privacy matters of legitimate public concern Newsworthy persons (politicians, celebrities, etc) may lose right of privacy to the extent that their private facts are relevant to legitimate news Example: photo top footballer taking drugs … Example: photo top footballer having sexual affair...

47 BUT: Many laws do not protect private matters if they are in public view Example: photo of mother grieving for her daughter, victim of car accident

48 Right of Publicity –Ones image = result of own effort. Has economic value –Cautious when using photograph of celebrity for own commercial gain 3. Using someones image for commercial benefit

49 Photo of Anna Kournikova on cover of sports magazine after she won grand slam Photo of Anna Kournikova on posters to sell them Fictitious examples

50 Presence of celebrity is effective tool to attract consumer attention and to create credibility Without authorization: may be liable for passing off or unfair trade practices 4. Suggesting that someone is authorizing or endorsing a product

51 Photo of Anna Kournikova on packaging of tennis balls Fictitious example

52 False light: false representation of a person (not necessarily damage to the reputation) Defamation: damaging the reputation of someone by making false statements How can photography amount to defamation/false light? –Often when photo is used to illustrate a text in a way that falsely depicts the portrayed person. 5. Putting someone in a false light or defame someone

53 Photo of man incidentally walking in front of brothel. Photo used to illustrate article on child prostitution... Fictitious example

54 Photo of President Hu Jintao. Published with caption: attributes a statement that he did not make Fictitious example

55 Photo of figure skater Nancy Kerrigan. Photo showing nude woman, Nancys face grafted onto the nude body. Photos advertised on the Internet. Example


57 Photographers need to think about legal restrictions when making images which include any copyright material, trademark, identifiable person or private affairs. Written permission = best protection –extent of permission –even if not legally required –written

58 Most situations are not clear: grey lines. Some pragmatism will be needed to decide whether or not you will run after a release. Pragmatism comes from empirical experience. Balance between risks (costs) and benefits.

59 The personal choices that a photographer needs to make regarding material and the manner of execution not only reflect how he or she sees the world, but also reflect how the world sees the photographer as an ethical being. Quote from Bert P. Krages Legal Handbook for Photographers, Amherst Media Inc., Buffalo, NY, USA, 2002

60 Thank You for your Attention. WIPOs website for SMEs :

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